DEPARTMENT OF THE TREASURY INTERNAL REVENUE SERVICE DENVER DISTRICT OFFICE DENVER, COLORADO and CHAPTER 32, NATIONAL TREASURY EMPLOYEES UNION

United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

In the Matter of

DEPARTMENT OF THE TREASURY

INTERNAL REVENUE SERVICE

DENVER DISTRICT OFFICE

DENVER, COLORADO

and

CHAPTER 32, NATIONAL TREASURY

EMPLOYEES UNION

Case Nos. 90 FSIP 173

and 90 FSIP 213

DECISION AND ORDER

Chapter 32, National Treasury Employees Union (Union), filed
requests for assistance with the Federal Service Impasses Panel (Panel) to
consider two negotiation impasses under section 7119 of the Federal Service
Labor-Management Relations Statute (Statute) between it and the Department of
the Treasury, Internal Revenue Service, Denver District Office, Denver, Colorado
(IRS or Employer). The Union's requests have been consolidated for the purpose
of this Decision and Order.

After investigation of the requests for assistance, the Panel
directed the parties to meet informally with Member Charles A. Kothe for the
purpose of resolving the issues at impasse in both cases. The parties were
advised that if no settlement were reached, Member Kothe would report to the
Panel on the status of the disputes and his recommendations for resolving the
issues. After considering this information, the Panel would take whatever action
it deemed appropriate to resolve the impasses including the issuance of a
binding decision. No final settlements having been reached, the Panel has
considered the entire record in the cases.

BACKGROUND

The Employer's mission is to administer the Federal tax laws,
and includes such functions as providing tax information to the public,
examining tax returns, and collecting delinquent taxes. The Union represents
approximately l,000 employees, part of a nationwide-consolidated unit of about
60,000, in such jobs as tax auditor, revenue officer and agent, taxpayer service
representative, and clerk-typist. The parties' collective-bargaining agreement
expires in June 1994.

ISSUES AT IMPASSE

The impasse in Case No. 90 FSIP 173 arose from a reopener provision in a
Memorandum of Understanding negotiated by the parties concerning alternative
work schedules (AWS). The issue at impasse is the extent to which employees in
the Automated Collection System (ACS) and Taxpayer Service (TPS) Divisions shall
have the option of participating in a 4-10 AWS.(1) The impasse in Case No. 90
FSIP 213 arose from the parties' decision to reopen negotiations for the purpose
of amending a previous Memorandum of Understanding governing smoking policy. Although the parties agree that
smoking in Employer-controlled areas of buildings eventually should be
completely prohibited, they are at impasse over the length of the phase-out
period.

POSITIONS OF THE PARTIES

Case No. 90 FSIP 173

1. The Union's Position

The Union proposes that the 4-10 option be made available to: (1) all
bargaining-unit employees in the ACS Division, and (2) all bargaining-unit
employees in the TPS Division, other than front-line assistors. It argues that
there is adequate work available for employees on a 4-10 schedule in both
divisions, and no evidence that the quality of service to the public would
suffer. In this regard, the results of a 4-10 experiment conducted by the
Employer should be disregarded because it "did not compile the test data as
it agreed to in the Memorandum of Understanding." This resulted in a test
which was incomplete, and summary test results which contain obvious
inconsistencies. The test results "are invalid and were designed by the
Agency to show a complete failure of 4-10," and support its contention that
the Employer's opposition to its proposal is a product of personal bias.
Moreover, the Employer's reluctance to agree to a 4-10 option "is
confusing," particularly in the ACS Division, given that those employees
"are currently working 10-hour days." Finally, should its proposal be
adopted, the Employer's ability to accomplish its mission would continue to be
ensured because the parties' current agreement gives it the right to deny any
AWS request for bona fide workload considerations.

2. The Employer's Position

The Employer proposes that: (1) in the ACS Division, two employees from each
of four branch teams be given the option of working a 4-10 schedule; if more
than two employees request such a schedule, IRS seniority would determine the
two participating employees; and (2) no employees in the TPS Division be given a
4-10 option. The nature of the work performed in the ACS Division, which
involves the handling by telephone of "sensitive and urgent" tax
collection issues, requires that an adequate number of ACS Division employees be
available during peak business hours. The efficiency of the operation "is
hindered when there is a reduced workforce," as would be the case under the
Union's proposal. Although it realizes that "this is not the most efficient
means of operating the ACS [Division] call site," it offers to permit two
ACS Division employees on each team to request a 4-10 schedule "in the
spirit of compromise." Any additional employees not available during peak
business hours would "significantly affect the call site's ability to
accomplish [its] mission."

With respect to the TPS Division, at current staff levels the adoption of a
4-10 program is incompatible with its mission of achieving voluntary tax
collection compliance through education and assistance to taxpayers. In this
regard, the results of a recent experiment involving 10 employees participating
in a 4-10 schedule in the TPS Division showed: (1) additional salary costs for
seasonal employees called to duty to compensate for participating employees'
days off; (2) increases in average leave usage for those employees compared with
those on regular schedules; and (3) reductions in productivity and increases in
the error rate of participating employees versus the division as a whole.
Moreover, statistics compiled from the Pittsburgh District Office, where 4-10
schedules for employees in the TPS Division are available, indicate that the
level of service is significantly lower than in the Denver District. This is
additional evidence that the Union's proposal should be rejected.

Case No. 90 FSIP 213

Through the assistance of Member Kothe, the parties have reached virtual
agreement on a new policy which would eliminate smoking in all areas controlled
by the Employer. Pursuant to their understanding, these areas are divided into
Categories A, B, and C. The Union essentially proposes that: (1) all areas
controlled by the Employer be smoke-free within 24 months, and that the status
quo be maintained in the interim; and (2) if moves into new buildings occur
during that period, the Employer consider designating smoking areas in the new
locations. The Employer, on the other hand, proposes that, 30 days after the
parties receive the Panel's decision, smoking be phased out: (1) immediately in Category A; (2) after 6 months in Category
B; and (3) after 18 months in Category C areas. The Union favors a longer
phase-out period to maximize the effectiveness of smoking cessation programs,
and generally to lessen the adverse impact on smokers. The Employer, however,
believes that a shorter phase-out period would more appropriately balance the
interests of smokers and nonsmokers.

CONCLUSIONS

Having considered the evidence and arguments in these cases, including the
recommendations of Member Kothe, we turn first to the issue concerning AWS. With
respect to the availability of 4-10 schedules in the ACS Division, we shall
order that the parties adopt the Employer's position to settle this part of
their dispute. In this regard, we are persuaded that permitting a maximum of two
employees in each branch team to participate would reasonably balance the
interests of bargaining-unit employees with the Employer's mission requirements.
As to their availability in the TPS Division, the Employer relies heavily on the
results of the 4-10 experiment it recently conducted in support of its view that
such schedules would be totally inappropriate. The record indicates, however,
that the experiment was not conducted in accordance with the terms agreed to by
the parties in their Memorandum of Understanding. Accordingly, we have given the
results of the study little weight in our deliberations. Thus, the Employer's
arguments as to the suitability of the 4-10 option for employees in the TPS
Division appear to be speculative, particularly in light of the fact that it
retains the right to deny any AWS request on the basis of bona fide workload
considerations.

Accordingly, we shall order the parties to adopt a compromise position
regarding 4-10 work schedules in the TPS Division whereby two employees from
each team within the Problem Resolution Program, Technical Backup, Written
Accounts Referral, and Quality Assurance groups shall have the option of working
such schedules. If more than two employees request such a schedule, IRS
seniority shall determine the two participating employees from within each team.
As we indicated with respect to the ACS Division, we believe that this compromise represents a reasonable balancing of the equities involved. We
note that, in addition to the parties' agreement permitting the Employer to deny
AWS requests when it concludes that its mission would be adversely affected, the
Federal Employees Flexible and Compressed Work Schedules Act of 1982, 5 U.S.C. 6120
et seq., provides for the termination of AWS programs which cause an adverse
agency impact.(2) We find that these provisions adequately protect the Employer's
mission requirements.

Concerning the remaining issue, we are persuaded that a compromise should be
adopted to settle the parties' impasse over the length of the phase-out period
for the elimination of smoking in Employer-controlled areas. In this regard, we
shall order that 30 days after the date of this Decision and Order, smoking
shall cease completely within: (1) 6 months for areas in Category A; (2) 12
months for Category B; and (3) 21 months in Category C. In our view, a minimum
of 6 months should be provided to enable smokers who work in Category A areas to
participate in smoking cessation programs before completely eliminating their
access to Employer-controlled designated-smoking areas. Moreover, a 21-month
period for the complete elimination of smoking in all areas controlled by the
Employer in the Denver District appears to provide a reasonable basis for
resolving this aspect of the parties' dispute, particularly in view of the
health hazards associated with the practice.

ORDER

Pursuant to the authority vested in it by section 7119 of the Federal Service
Labor-Management Relations Statute and because of the failure of the parties to
resolve their dispute during the course of proceedings instituted pursuant to
section 2471.6(a)(2) of the Panel's regulations, the Federal Service Impasses
Panel under section 2471.11(a) of its regulations hereby orders the following:

Case No. 90 FSIP 173

With respect to the Automated Collection System Division, the parties shall
adopt the Employer's position.

With respect to the Taxpayer Service Division, within the Problem Resolution
Program, Technical Backup, Written Accounts Referral, and Quality Assurance groups, two employees from each team within
those groups shall have the option of working a 4-10 work schedule. If more than
two employees request such a schedule, IRS seniority shall determine the two
participating employees.

Case No. 90 FSIP 213

The parties shall adopt the following wording:

(1) 30 days after the date of this Decision and Order, the following timetable shall be implemented with respect to the
phase out of smoking in all areas occupied by IRS employees in the Denver District over which the Employer has control:

(a) For areas in Category A, smoking shall cease completely within 6 months of the date of implementation of this timetable.

(b) For areas in Category B, smoking shall cease completely within 12 months of the date of implementation of this timetable.

(c) For areas in Category C, smoking shall cease completely within 21 months of the date of implementation of this timetable.

(2) During the phase-out periods established above, all areas currently designated as smoking areas shall continue as
such as long as the Employer retains control over the areas.

(3) During and after the phase-out periods established above, employees shall continue to be permitted to smoke in
public areas not under the Employer's control during breaks.

(4) Employees who smoke shall be permitted to attend smoking cessation
classes on the following basis:

(a) The first time that an employee enrolls in a smoking cessation program,
the Employer shall pay the full cost of the program. The employee shall be
placed on administrative leave while attending the program.

(b) The second time that an employee enrolls in a smoking cessation program,
the Employer shall pay one-half of the cost of the program. The employee shall
be responsible for paying the other half. The employee shall be placed on
administrative leave while attending the program.

(c) The third time that an employee enrolls in a smoking cessation program,
the employee shall be responsible for the full cost of the program. The employee
shall be placed on administrative leave while attending the program.

By direction of the Panel.

Linda A. Lafferty

Executive Director

December 21, 1990

Washington, D.C.

1.
A 4-10 schedule consists of four 10-hour days each week with the fifth day
off.

(a) Notwithstanding the preceding provisions of this subchapter or any
collective bargaining agreement and subject to subsection (c) of this section, if
the head of an agency finds that a particular flexible or compressed schedule
under this subchapter has had or would have an adverse agency impact, the agency
shall promptly determine not to--